23 Ga. App. 740 | Ga. Ct. App. | 1919
This is a second grant of a new trial, the order of the court being as follows: “There have been three trials of this case. On each trial the evidence was substantially identical. Upon consideration of the record on the first motion for new trial, it seemed to me that there was no ease made authorizing a recovery, and therefore the motion was granted. Being still of this opinion when the second trial was had, I directed a verdict for the defendant. Exceptions to the direction of the verdict were sustained by the Court of Appeals, and the case remanded. Buford v. Southern Cotton Oil Co., 20 Ga. App. 581 (2) (93 S. E. 318). The charges of the court on the first and third trials were practically identical. It does not yet'seem to me that on this record plaintiff is entitled to recover, and I am constrained to grant a new trial on all of the grounds thereof, and it is so ordered.”
No error of law appears, and it being clear that the trial judge granted the second new trial on the idea that the plaintiff was not entitled to recover on the evidence submitted, which the above-quoted order shows was substantially the same as that introduced on- a previous trial, and which this court on review held to be sufficient to warrant a submission of the case to a jury (Buford v. Southern Cotton Oil Co., supra), and this being the law of the case, we are constrained to hold that the trial judge abused his discretion in granting a second new trial; the settled rule of the Supreme Court and of this court being that the grant of a second new trial will be closely examined to see that the court’s discretion was cautiously, justly, and wisely exercised. Vassie v. Central of Ga. Ry. Co., 135 Ga, 8 (68 S. E. 782); Morgan v. Lamb, 16 Ga. App. 484 (85 S.. E. 792), and numerous cases there cited.
Judgment reversed.
